Mahoney v. St. Paul City Railway Co. , 140 Minn. 516 ( 1918 )

Pee Cueiam.

Action by an administrator to recover for the wrongful' death of his intestate. Defendant at the trial admitted that its negligence caused the death, but objected to the introduction of any evidence on the ground that the complaint did not state facts constituting a cause of action, the particular defect being that, although it alleged that deceased left a widow and minor son dependent upon him, it stated that the damages claimed resulted to the plaintiff, the administrator. The objection was overruled, and evidence received as to the pecuniary loss of the widow and son. At the close of the evidence defendant moved for a directed verdiet, and plaintiff moved to amend the complaint so as to allege that plaintiff and said heirs were damaged in the sum stated. Defendant’s motion was denied and plaintiff’s granted. A verdict in favor of plaintiff was returned. Defendant moved for judgment non obstante. It did not ask for a new trial. Judgment was entered upon the verdict and defendant appeals, assigning as errors the overruling of the objection to the introduction of evidence, the refusal to instruct a verdict in its favor, and the denial of its motion for judgment notwithstanding the verdict.

Plaintiff moves to dismiss the appeal on the ground that the errors assigned are insufficient-to raise any issue, and that the appeal is without merit and frivolous.

We think the motion should be granted. All the errors assigned, or that might be assigned on the record made, hinge upon rulings at the trial as to the sufficiency of the complaint and the allowance of an amendment thereto. These errors could all have been reached upon a motion for a new trial. By moving for judgment notwithstanding the verdict defendant waived all errors that might have been redressed on a motion for a new trial. The appeal must be considered frivolous under the rule announced in Prigge v. Selz, Schwab & Co. 134 Minn. 245, 158 N. W. 975; Hoggarth v. Minneapolis & St. Louis R. Co. 138 Minn. 472, 164 N. W. 658; and the cases cited' in section 393, Bunnell, Minn. Dig. and 1916 Supplement.